Questions on Whether Lawsuit is Likely to Solve City’s Foster-Care Problems

Elisa W. was removed from her home at four years old. Now 16, she has been sexually and physically abused over the 12 years she’s spent in foster care. She now suffers from depression, bipolar disorder and post-traumatic stress disorder.

Sisters Olivia R., 5, and Ana-Maria R., 4, were shuffled between three homes in their four years in foster care. Two years ago, while in one of those homes, Ana-Maria witnessed Olivia being sexually abused. But the agency overseeing their care ignored the abuse when it was reported. Both girls now suffer from numerous mental-health issues.

Tyrone M. was less than two weeks old when he entered foster care. Like Olivia and Ana-Maria, Tyrone, now 7, has been placed in three different homes. Neglected in his second home, Tyrone came to his current placement with severe dental problems. He’s also developed behavioral issues that led him to be banned from his school lunchroom.

These are just three of the stories alleged in the class-action lawsuit filed earlier this month by the Office of the New York City Public Advocate and 10 foster care children against the New York City Administration for Children’s Services. The suit is the latest effort in Public Advocate Letitia James’s effort to address what she sees as decades-old flaws within the foster care system.

“We need concrete, lasting reform to put an end to the rampant abuse and neglect that has plagued the system for decades,” says James. “Children in foster homes deserve care and safety, and it’s our responsibility to make sure they are taken care of.”

The suit came on the heels of a new policy report on the foster care system’s shortcomings released by James’ office two days before the suit was filed. Despite some effort by the agency to improve outcomes, the lawsuit alleges that ACS continues to put thousands of children in harm’s way because it fails to provide them with adequate services and suitable placements.

Children continue to languish in the foster care system because of longstanding systemic deficiencies, the complaint charges, causing children “irreparable harm.”

“We hope that finally this longstanding problem is going to be addressed in New York City,” says Marcia Robinson Lowry, executive director of the children’s advocacy group, A Better Childhood, who represents the children in the case. “The city and state have known about [these issues] for a very long time and it hasn’t gotten better.”

The suit also names New York State Office of Children and Family Services and its acting commissioner, Sheila J Poole, as defendants.

A spokeswoman for OCFS said the state agency does not comment on pending litigation.

The allegations

The plaintiffs’ experiences described in the 111-page complaint paint a picture of a troubled agency ill-equipped to protect the children it serves.

Similarities pop up throughout each story. Many children were abused and neglected while in foster care, the suit alleges. Most have been shuffled through multiple homes, batted around among the private contractors who oversee foster-care placements on behalf of ACS. All have exhibited signs of emotional trauma, with some of the children diagnosed with behavioral and mental health problems. And all have spent most — if not all — of their lives in the system, waiting to be placed in a permanent home, but having that chance delayed over and over again because of changes in permanency goals and a perceived lack of effort on the part of caseworkers.

“Children in New York City’s foster care system are in one of the most dangerous foster care systems in the country,” reads the complaint.

That claim, said Lowry, is supported by the fact that New York has the second highest number of incidents of maltreatment while in foster care. Since New York City accounts for nearly half of all children in care statewide — 11,137 of the nearly 23,000 children— the city carries the brunt of that statistic.

Two federal audits of New York’s child welfare system released in 2002 and 2009 found that the city didn’t meet the national standard in preventing repeat occurrences of maltreatment.

“The most fundamental thing any child welfare systems should be able to promise children is that they’ll at least be kept safe,” says Lowry.

A City Limits review of recent federal data showed that the state actually ranked sixth out of 51 states and territories for the number of maltreatment cases in foster care in 2013. The ranking is an improvement from previous years, but still fails to meet the national standard.

While national data show the number of children entering New York’s foster care system has decreased significantly over time, the lawsuit claims the city still fails to place foster children, most of whom are black or Latino, in permanent homes in a reasonable timeframe.

Children in the New York State foster care system stay in custody longer than most states. Foster children in the Empire State stayed in care for an average of 23.4 months in 2013, according to national data; only Illinois and the District of Columbia had longer rates of stay than New York. The national median amount of time spent in care was 13.5 months, reported the U.S. Administration for Children and Families’ Children’s Bureau in 2013.

State data show the median length of foster-care stay in New York City is twice the statewide average: 2.26 years in New York City versus 1.18 years for the rest of the state.

Other state statistics indicate the majority of New York City foster children — 35 percent — remain in care for over three years without a clear permanency goal.

The time in foster care can also prove unstable. According to the public advocate’s July report, 57 percent of calls placed to James’ five-month-old foster care hotline involved children who were placed in more than one setting during their time in care. Of that number, 26 percent of children surveyed reported being in more than five placements while in foster care.

“It’s pretty recognized that children need permanency and stability in their lives,” says Lowry. “New York City children are not getting that because they don’t know where they’re going to grow up.”

And most foster children age out of the system without concrete discharge plans. The 2014 report released by the public advocate’s office found that around 800 of the nearly 1,000 children discharged from care each year are left without financial, familial or housing support. According to a 2011 report by New York think tank Center fro an Urban Future, one in five foster children discharged will experience homelessness within three years of exiting care.

This lack of support is pervasive within the system, the complaint asserts.

Since ACS fails to address its systemic flaws, the city agency continues to fall short in meeting its children’s needs, the suit says. But it’s not for a lack of resources or money, the plaintiffs say. Instead, Lowry attributes the long permanency delays and occurrence of abuse to inadequate services for children and families, ongoing delays in the Family Court process, a lack of adoption opportunities for children who could not be returned home safely and a lack of accountability and oversight over the treatment of children in placement with ACS’s 29 contract agencies.

“Throughout the interviews and meetings and conversations we had, it was quite clear that there is a lack of urgency with regard to obtaining permanency for children in New York City,” says Lowry.

The city and state were expected to file their answer to the lawsuit on July 30 but have asked for extra time.

Is a lawsuit the answer?

But ACS sees the class-action lawsuit as a “simplistic approach to a complex system” that is unlike other jurisdictions in the country — and one that would not benefit from a lengthy litigation process.

“Litigation will not achieve meaningful long-lasting improvements to the well-being of children and may impede ACS and its partner agencies from implementing systemic reform,” ACS spokesman Chris McKniff told City Limits in a statement.

According to McKniff, the child welfare agency has already started making “significant progress” in reforming the system under Mayor de Blasio’s administration. Initiatives are put in place to reduce the length of time spent in foster care and to accelerate permanency, he said.

But ACS says permanency delays and longer than average stays are a symptom of the district’s legal structure rather than agency inefficiency. The city’s Family Court must approve any permanency action ACS takes, the spokesman said, adding that attorneys representing parents and children in foster care cases can lengthen the legal process, increasing the length of the child’s stay.

Outside forces have also spurred change within the agency. Last year, the deaths of three foster children prompted de Blasio to order ACS to improve its operations. Part of those improvements includes the new Office of Case Compliance and Monitoring, which ACS set aside $6.5 million of its $2.89 billion budget to operate.

ACS has an unlikely ally in this lawsuit. Tami Steckler of the Legal Aid Society, which has sued ACS a number of times, told multiple media outlets in a statement that the lawsuit is “short-sighted” and “may stall the progress being made by those of us actually working with these families and children.”

Lowry, though, doesn’t think the agency has made the changes it claims. While the problems within ACS did not start with the new administration, progress has still fallen short under its tutelage, she says.

“If the city thinks it’s changed things, they will be able to show it in trial,” says Lowry, “but the data is the data.”